AN ACT RELATING TO ESTABLISHING A “SORRY WORKS!” PROGRAM
It is hereby enacted by the General Assembly of the State of Vermont:
Sec. 1. 12 V.S.A. § 1912 is added to read:
§ 1912. EXPRESSION OF REGRET OR APOLOGY BY HEALTH CARE
(a) An oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, made by or on behalf of a health care provider or health care facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the error, does not constitute a legal admission of liability for any purpose and shall be inadmissible in any civil or administrative proceeding against the health care provider or health care facility, including any arbitration or mediation proceeding.
(b) In any civil or administrative proceeding against a health care provider or health care facility, including any arbitration or mediation proceeding, the health care provider, health care facility, or any other person who makes an oral expression of regret or apology, including any oral good faith explanation of how a medical error occurred, on behalf of the provider or facility, that is provided within 30 days of when the provider or facility knew or should have known of the consequences of the potential adverse outcome, may not be examined by deposition or otherwise with respect to the expression of regret, apology, or explanation.
(c) As used in this section:
(1) “Health care facility” shall have the same meaning as in subdivision 9402(7) of Title 18.
(2) “Health care provider” shall have the same meaning as in subdivision 9402(8) of Title 18.
(d) The liability protections afforded by subsections (a) and (b) of this section shall not be construed to limit access to information that is otherwise discoverable.
(e) This section shall apply only to medical errors that occur on or after July 1, 2006.
Sec. 2. SORRY WORKS! PILOT PROGRAM
(a) For purposes of this section:
(1) “Commissioner” means the commissioner of banking, insurance, securities, and health care administration.
(2) “Department” means the department of banking, insurance, securities, and health care administration.
(b) The Sorry Works! pilot program is established under the oversight of the commissioner. Any hospital that voluntarily chooses to participate shall be eligible for the program beginning on January 1, 2007. Hospitals may participate only with the approval of the hospital administration and the hospital’s medical staff.
(c)(1) Under the program, participating hospitals and physicians shall promptly acknowledge and apologize for mistakes in patient care that result in harm and promptly offer fair settlements. If a settlement is accepted, further litigation with respect to the mistake shall be prohibited.
(2) Participating hospitals shall provide to the patient written notification of the patient’s right to legal counsel. The notification shall include an affirmative declaration that no action was taken to dissuade a patient from using counsel for the negotiations.
(3) A communication between parties engaged in negotiation pursuant to this program is privileged and is not subject to discovery or admissible in evidence in any civil or administrative proceeding. Evidence or information that is otherwise admissible or subject to discovery does not become inadmissible or protected from discovery solely by reason of its disclosure or use in negotiations pursuant to this program.
(4) Participation in Sorry Works! shall toll the applicable statute of limitations in cases where such negotiations are unsuccessful. The commissioner shall establish guidelines for determining when negotiations under the Sorry Works! program begin and end for purposes of tolling the statute of limitations.
(d) Participating hospitals shall report to the department their total costs for medical malpractice verdicts, settlements, and defense litigation for the preceding five years to enable the department to determine average costs for that hospital during that period. The department shall develop standards and protocols to compare costs for cases handled by traditional means and cases handled under the Sorry Works! program for purposes of reporting to the general assembly as to the financial impact of the program.
(e) The commissioner shall establish criteria for the program, including the criteria under which hospitals shall be selected to participate. A program participant may withdraw from the program by notifying the commissioner. Any mistakes in patient care that result in harm that occurred prior to the program participant notifying the commissioner shall continue to be subject to this section and the terms of the program.
(f) In consultation with hospitals, providers, and other interested parties, the department shall adopt rules to implement the pilot program no later than October 1, 2006.
(g) The department shall initiate a dialogue with insurers and encourage them to participate in the Sorry Works! pilot program with any hospital that is willing to commit to the program. The department shall use all of the methods at its disposal to gain the participation of insurers necessary to enable hospitals to participate and the program to be implemented.
(h) The department shall report to the general assembly on or before January 15, 2009 on the implementation and administration of the program, including the value of extending the program and any recommendations to facilitate participation.
(i) This pilot program shall sunset on June 30, 2009.
The Vermont General Assembly
115 State Street